Life Accident Ins. Co. v. McWilliams , 146 Miss. 298 ( 1927 )

^* Corpus Juris-Cyc. References: Accident Insurance, 1CJ, p. 443, n. 17; p. 504, n. 48. This case is here on appeal for the second time. See ProvidentLife Accident Insurance Co. v. Mrs. Emma McWilliams, ___ Miss. ___, 107 So. 527. Upon the former appeal the judgment of the lower court was reversed, for the reasons given in the opinion of the court. The case was tried again, which resulted in a judgment for two thousand three hundred dollars in favor of Mrs. McWilliams for the accidental death of her husband, who was shot and killed by one Ed Davenport.

The recovery is based upon an accident insurance policy, which provided for indemnity for accidental injuries to Carl McWilliams, husband of the appellee, and, among other things, the policy sued on contained the following clause:

"This policy does not cover injuries, fatal or nonfatal, sustained by the insured. . . . (4) If said fatal or nonfatal injury resulted from . . . an intentional act of the insured or of any other person. . . ."

In the case before us, the insured, McWilliams, who was serving as a flagman on a passenger train of the Mobile Ohio Railroad, was shot and killed by Ed Davenport, a passenger on the train, who became suddenly enraged on account of an imaginary wrong, and proceeded to shoot McWilliams to death. The conductor, Miller, was sitting in the negro coach, as was also McWilliams, at the time Davenport entered the car through a rear door. Davenport took three steps past McWilliams, and then stopped and deliberately aimed at him with a 32-caliber pistol and shot him down. Davenport then turned and shot at Miller two or three times, wounding him once, before he could grapple with Davenport in an effort to take the pistol from him. Miller, being unable to get the pistol away from Davenport, fled into the passenger coach and closed the door behind him, pressing his feet against it to prevent Davenport from entering the car. Seeing that he could not get into the car, Davenport began to shoot at Miller through the glass partition of the door, causing Miller to run to the rear of the train, which had stopped by this time, and get off, followed by all of the passengers, who were frightened.

Mason, one of the passengers picked up McWilliams, who was lying in the aisle of the car, and, as he did so, Davenport shot McWilliams three times again, and this shooting caused Mason to flee for safety. Other shots were fired on the train. McWilliams was mortally wounded, and died shortly after he was shot. Davenport was found in a seat in the negro coach, shot through the head, from which wound he died in a short while. Davenport, according to the circumstantial evidence, committed suicide.

At the trial the insurance company defended against the payment of the accident benefit on the ground that the policy did not cover the death of the insured, because of the provision, referred to above, which excluded liability for an injury resulting from an intentional act of the insured or of any other person, and that the death of McWilliams was due to the intentional shooting by Davenport.

The plaintiff below contended that the excluding provision in the policy did not apply in the case at bar, because the person who intentionally shot the insured was insane at the time and not capable of shooting intentionally; that the intentional shooting provided against in the policy meant such shooting or injury as might be intentionally done by one who was rational at the time, and not by one who was insane, and suffering from such impairment of mind as would render him incapable of acting intentionally.

The insurance company also maintained that, regardless of whether the injury was inflicted by a sane person, the provision of the policy excluding this character of injury would apply, because the language of the provision clearly provides that any intentional act causing the injury will defeat indemnity, for the reason that the language was intended to exclude recovery for an injury caused by any intentional act of any person.

At the trial below the plaintiff offered an abundance of testimony, both expert and nonexpert, which tended to show that Davenport was insane, and not capable of acting rationally, at the time he killed McWilliams. We have examined this testimony, and, while some of the witnesses gave it as their opinion that Davenport was insane, which opinion was based on scanty facts, still there was a great deal of competent and convincing proof that Davenport was not only insane, but violently so, at the time he shot and killed McWilliams.

The jury certainly had enough evidence before it to properly decide that the act of Davenport was that of an insane man; and, this being true, the case at bar comes clearly within the rule announced in the case of Hutson v. Continental Casualty Co., ___ Miss. ___, 107 So. 520. The judgment of the lower court, therefore, must be upheld, unless the other contention of the appellant, that the provision against indemnity included the act of an insane person the same as that of any other person.

On this last proposition, we do not think the contention is sound, because the principle that one must be sane or rational before he can be capable of intentionally committing an act is already established as the law in the Hutson case, supra, and applies to the provision in the policy here which attempts to exclude liability for injury inflicted intentionally upon the insured. Therefore we hold that the provision in question does not apply, unless the intentional act is that of a rational person.

The decision of the lower court is affirmed.

Affirmed.